Why NBCU Appealed a 'Ghost Hunters' Lawsuit to the U.S. Supreme Court (Analysis)

NBCU, supported by the MPAA, has petitioned for cert to the high court in a lawsuit involving whether the studio ripped off the idea for Syfy's 'Ghost Hunters'.

Alik Keplicz/Syfy

Will Hollywood continue to get sued left and right for stealing script ideas? The answer may depend on whether the U.S. Supreme Court decides to hear a case involving NBC Universal's alleged heist of the idea behind the hit Syfy reality show Ghost Hunters.

The lawsuit was originally filed in 2006 by Larry Montz, a parapsychologist, and Daena Smoller, a publicist, who alleged they conceived the idea of a show about a team of paranormal investigators who go into haunted locations. The two claimed to have presented screenplays, videos and other materials to NBCU execs between 1996 and 2003.

The two plaintiffs certainly aren't the only ones to have sued Hollywood studios for ripping off ideas. Throughout the years, many writers have brought claims only to suffer courtroom disappointment when judges explain the difference between expression and ideas -- the U.S. Copyright protects the former but not the latter -- and the judicial high bar for establishing "substantial similarity" in expression.

What makes the Ghost Hunters case possibly different is that the claims may go beyond straight copyright infringement with the easier-to-prove allegation that NBCU breached an implied contract. In essence, that would mean that when a screenplay is submitted and accepted for review, as is alleged here, there's an expectation that if the material is later used, the writer will get something.

We say possibly because that's what's subject to dispute. Is a stolen idea allegation a contract breach or a disguised copyright infringement claim? If it's the latter, then federal copyright law usurps state contract law and aggrieved writers are out of luck.

The Ninth Circuit Court of Appeals has something called the "extra element" test to sniff out the difference. In the Ghost Hunters case, the appeals circuit overturned a prior decision by saying there doesn't need to be an explicit promise of payment; Even an implied promise of partnership could qualify as an "extra element" transforming a copyright claim into a contract claim.

In anticipation of getting hit more and more by breach-of-implied-contract lawsuits from writers, NBCU wants the U.S. Supreme Court to review the decision. In its petition for cert, the studio notes that the 2nd and 4th Circuits have previously ruled that a breach of implied contract claim is equivalent to a copyright infringement claim and thus is preempted. NBCU points to Congressional intent when enacting copyright policy and the detrimental effect if the Ninth Circuit's decision is allowed to stand.

The MPAA has also filed an amicus brief supporting NBCU's high court appeal.

The Supreme Court isn't known for picking up many copyright cases, but if it grants cert on this one, there will surely be tremendous amount of interest among Hollywood lawyers. Every studio sees several stolen idea allegations per month, and it's not uncommon for these studios to spend nearly a million dollars defending even the most trivial lawsuit. Writers who have been rushing to court only to lose on copyright infringement claims also have a big stake in this battle.